The Environmental Impact Assessment (EIA) Directive and the Integrated Pollution Prevention and Control (IPPC) Directive provides that citizens have the right to challenge decisions concerning the impact of industrial pollution, and the potential impact that projects may have on the environment. It is expressly specified that such challenges “must not be prohibitively expensive.” The UK has transposed these directives. However, according to the Commission, they have not been fully transposed and properly applied.
The Commission believes that the legal challenges in the UK are too costly and entail therefore a financial obstacle. According to the Commission, the high costs of UK legal proceedings is preventing NGOs from bringing cases against public bodies.
It is a rule in UK litigation that the losing party pays all or part of the winning party’s costs. There is an exception to this rule whereby a “protective cost order” might be sought to limit claimant’s exposure to the other side’s costs where there is a public interest in the issue in question. The Commission has noted that “protective costs orders” “are now granted more frequently than in the past”, nevertheless, the Commission is particularly concerned “about the lack of clear rules for granting such orders, and at their discretionary and unpredictable nature, which is not in line with the requirements of the Directive.”
The Commission is concerned with a long-standing feature of the justice system in England and Wales, the requirement that an applicant for interim injunctions has to provide “cross undertaking in damages”, promising to pay damages if the injunction is deemed to be unfounded. According to the Commission “This puts applications for such orders beyond the reach of most applicants, although such orders can be essential to protect sites from environmental damage whilst litigation is ongoing.” The Commission takes the view that cross undertaking in damages should not be required in support of an interim injunction in environmental judicial review claims. Where an interim injunction is not upheld, there is judicial discretion whether or not to enforce a cross undertaking. The UK might be require to amend civil procedural rules in order to clarify the factors that the Court will take into account in deciding whether to issue an interim injunction in environmental judicial review proceedings.
In March 2010, the Commission issued a final warning to the UK about “prohibitively expensive challenges to the legality of decisions on the environment.” The European Environment Commissioner Janez Potočnik has urged the UK to make the challenges on the decisions affecting the environment “affordable.” The Commission has recently pointed out that since the reasoned opinion was sent, one year ago, the UK government has not put in place legislative provisions to correct the situation.
According to the Commission, the UK has failed to comply with this final warning and it has decided to take the UK to the European Court of Justice. This should be a matter for each Member State to decide but the ECJ is set to rule on the costs of legal challenges in the UK. The UK would be required to review its system for allocating costs in environmental cases within the scope of the abovementioned directives.